Background

By a secret vote, a minority of the law school faculty blocked Professor Hammer from being granted tenure at the University of Michigan. This was an unusual event. In the forty years between 1965 and 2004, forty-five straight (or closeted) men were considered for tenure at the Law School. Without exception, all were granted tenure. Professor Hammer was the first openly gay man ever to be considered for tenure, and the first man in the history of the institution to be denied.

The University of Michigan hired Professor Hammer for a tenure-track position in 1995. He graduated summa cum laude from Gonzaga University with a B.S. in Mathematics, a B.A. in Economics and a B.A in Speech Communications. He completed his graduate and professional education at the University of Michigan, receiving a J.D., magna cum laude, in law and a Ph.D. in Economics. Before returning to teach, he clerked for the Honorable Alfred T. Goodwin, former Chief Judge of the Ninth Circuit U.S. Court of Appeals, and was a Litigation Associate in the Los Angeles firm of Melveny & Myers.

Professor Hammer specializes in the study of Health Law & Health Policy. While at Michigan, he was a recipient of the prestigious Health Policy Investigator Award from the Robert Wood Johnson Foundation. He was Guest Editor of a special volume of the Journal of Health Politics, Policy & Law entitled “Uncertain Times: Kenneth Arrow and the Changing Economics of Health Care”. This collection was later published in book form by Duke University Press. While teaching at Michigan, he spoke at numerous academic and professional conferences and published over twelve articles and book chapters. His Michigan publications include:

  • A Copernican View of Health Care Antitrust, 65 LAW & CONTEMP. PROBS. 241 (Special Issue: Is the Health Care Revolution Over?, Clark C. Havighurst, ed.) (2002) (with William M. Sage).
  • Antitrust, Health Care Quality, and the Courts, 102 COLUM. L. REV. 545 (2002) (with William M. Sage).
  • How Doctors Became Distributors: A Fabled Story of Vertical Relations, (AALS Antitrust Law Section, Guilds at the Millennium: Antitrust and the Professions) 14 LOY. CONSUMER L. REP. 411 (2002).
  • Medical Antitrust Reform: Arrow, Coase and the Changing Structure of the Firm, in THE PRIVATIZATION OF HEALTH CARE REFORM, at 113 (Gregg Bloche, ed.) (Oxford University Press) (2002).
  • Arrow’s Analysis of Social Institutions: Entering the Marketplace with Giving Hands? 26(5) J. HEALTH POLITICS, POLICY & LAW 1011 (Special Issue, Kenneth Arrow and the Changing Economics of Health Care, Peter J. Hammer, Deborah Haas-Wilson, and William M. Sage, eds.) (2001).
  • Pegram v. Herdrich: On Peritonitis, Preemption and the Elusive Goal of Managed Care Accountability, 26(4) J. HEALTH POLITICS, POLICY & LAW 767 (2001).
  • Antitrust Beyond Competition: Market Failures, Total Welfare and the Challenge of Intra-Market Second Best Tradeoffs, 98 MICH. L. REV. 849 (2000).
  • Assisted Suicide and the Challenge of Individually Determined Collective Rationality, in LAW AT THE END OF LIFE: THE SUPREME COURT AND ASSISTED SUICIDE, (Carl Schneider, ed.) (University of Michigan Press) (2000).
  • Questioning Traditional Antitrust Presumptions: Price and Non-Price Competition in Hospital Markets, (Symposium Issue, What’s the Prognosis: Managed Care in the Next Century), 32 MICH. J. L. REF. 727 (1999).

Michigan Law School considered Professor Hammer for tenure in 2002. The Standing Tenure Committee was charged with evaluating his work and preparing a recommendation and report for the full faculty. The Committee sought professional reviews from nine experts outside of the Law School. Eight of the nine external reviews recommended the granting of tenure. On a 4-1 vote, the Tenure Committee Report recommended that Hammer be tenured. Over the course of two evenings, members of the tenured faculty met and deliberated for nearly eleven hours. The final faculty vote was 18 in favor of tenure and 12 opposed 2 votes short of the required two-thirds majority.

Immediately after the vote, the Dean established an embargo on information. Beyond the typical admonishment that faculty members should not reveal the votes or views of others, the Dean prohibited individual faculty members from revealing their own votes or discussing with Hammer their own views on the merits of the decision. Faced with this silence, Hammer sought information in the tenure file under a state law ensuring public employees access to their personnel records. In violation of state law and against the advice of the General Counsel’s Office, the Law School Administration steadfastly refused to release any portion of the Tenure Committee Report authored by the favorable majority, or to reveal the nature of the Committee’s recommendation or the tally of the final faculty vote.

Hammer filed an internal Grievance at the Law School, alleging that discrimination had corrupted the process. The Law School interpreted its own procedures so as to prohibit the grievance of any maters related to tenure, even the crassest forms of discrimination in violation of state or federal law. Although this interpretation violated the University’s own model grievance procedures, the University Provost upheld the Law School’s decision to deny any internal forum to consider the alleged discrimination.

In January 2003, Hammer sought a hearing and the protections of Regent’s By-Law 5.09 for instructional staff who had acquired the equivalent of eight years of service at the University. This request was denied. Finally, in July 2003, the central administration falsely reported to the Board of Regents, not that Hammer had been denied tenure and his contract had subsequently terminated, but rather, that Hammer had resigned his position to seek alternative employment at Wayne State.

Hammer received tenure at Wayne State in 2004. After safely being tenured and being promoted to the rank of full Professor, he filed this law suit in January 2005.

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